Dissecting the digital utopia

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Medial Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws. There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act. In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place. And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions.

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair. So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun. He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance.

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed. That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press. From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright. That is ludicrous.

There is a lot of anxiety about jobs these days and with good reason. The subject of trade has a lot of people on edge, and we’re only just beginning to talk seriously about the very real prospect of automation killing middle-class jobs in places other than the obvious repetitive factory work. As theoretical physicist Michio Kaku predicts in a video on BigThink.com, AI won’t replace everything. “If your job is repetitive, if your job simply involves the friction of capitalism, that is, middlemen work, your job is doomed. However, if your job involves creativity, imagination, innovation, thinking, experience, leadership, hey… there’s a bright future for you. Because the economy itself is changing from commodity-based capital to intellectual capital. Intellectual capital cannot be mass produced,” Kaku says.

2012 was the first year the “core copyright industries” broke the trillion-dollar mark for contribution to U.S. GDP, and that number has grown steadily since, with 2015 weighing in at $1.2 trillion according to the latest report from the International Intellectual Property Association (IIPA.) As in the past, the new IIPA report shows the core copyright industries as growing at a faster rate (4.81%) than the entire rest of the American economy (2.11%). What it defines as the “core” includes industries directly associated with copyright ownership (e.g. publishing, movies, music, software), which continues to support about 5.5 million fairly high-paying middle-class jobs. The IIPA also notes that what it defines as the “total copyright industries,” including those that derive direct benefit from the “core industries,” as supporting over 11 million jobs.

Critics of these types of positive-outlook reports often respond by asking rhetorically why then do copyright owners complain about infringements like large-scale piracy when they seem to be doing just fine? To me, this is a bit like saying, “The air is breathable today, so why do we need environmental protections?” Piracy is only one threat to copyright; another is a mindset that the purpose of copyright is largely obsolete in the digital age.

It is also important to maintain a perspective which distinguishes between macro views and micro views. In the big picture, these types of reports from the IIPA reveal that investing in intellectual property overall remains a robust and positive sector. This macro view will not, however, reveal specific subsections of the “core industries,” like the independent photographer whose works are appropriated in ways that eat away at the combined revenue streams for his small business. I addressed a similar matter in this post with regard to the difference between major motion picture profitability writ large versus the effects of piracy on an independent production.

It has long been believed that as the market becomes more automated, the jobs that depend upon human creativity will never be taken over by the robots. As Kaku points out, despite what the sci-fi writers say, AI doesn’t perform these tasks particularly well. There are plenty of computer scientists who might beg to differ and certainly at least a few who insist that one day an AI will compose and perform symphonies, write novels, and make movies. But before we time-travel all the way into that reality, we currently live in a market economy that needs jobs to put food on the table. And for the moment, the investment in copyright-based industry appears to offer better returns than many other sectors.

In this regard, the presidential transition represents a tricky moment for some of us. The president I like, and I suspect a lot of creative people like, has not been good for IP and has been particularly starry-eyed when it comes to Silicon Valley’s influence on copyright policy. I have repeatedly asserted that when many of the OSPs say “innovation,” what they really mean is non-creative destruction, which siphons value from certain kinds of labor without replacing it with new and comparable forms of labor opportunities. Now, as Andrew Orlowski observes in a new article for The Register, president-elect Trump’s Strategic and Policy Forum has “snubbed” the bigwigs of Silicon Valley, which Orlowski suggests reflects an understanding that Facebook and Google are simply not major job creators.

Personally, I’d like to see a balance on that forum. I don’t think we’re putting the internet on the shelf, and we’re certainly not going to effectively manage the 21st century economy by pretending digital technology and networked systems don’t exist. But there’s also no denying the fact that the Obama administration was remiss in properly valuing the economic and social significance of copyright-based work, as evidenced by tone-deaf policies like the DOJ ruling on 100% music licensing, the FCC “unlock the box” proposal, and to an extent, even the policy direction of the Library of Congress.

One way or another, it would be great to see copyright become non-partisan again like it’s supposed to be. Because no matter what other issues are in play, copyright supports one aspect of American life that I think we can all agree on—and that’s the bounty of creative works nearly everyone taps into every day. That’s the fun part of America, remember? These works don’t generally pollute the environment, cause adverse side-effects on users, or even break treaties with indigenous tribes. And the fact that the fun industries sustain millions of good jobs, contribute nearly 7% to the U.S. economy, and add up to $177 billion in exports is kinda cool. Why wouldn’t we protect that?

In the current political climate, I imagine many artists, authors, and journalists will continue to speak up about a wide range of civil rights. While they’re at it, they should not forget their own rights.

For five years now, I’ve written in defense of copyright as a civil liberty—as a property right, a labor right, and a force for strengthening the First Amendment despite the skeptics who insist the opposite is true. Because without in any way imagining what American creative output would become, the Framers did an interesting thing when they gave Congress the constitutional authority to write intellectual property laws.

As students of the Enlightenment, the Founders knew that the United States, with its population of three-million mostly agrarian citizens, was never going to be a mature country without investing in art and science. They also knew that the young war-weary nation could not afford a national endowment for such luxuries; and at the same time, they were naturally wary of European models in which both the sciences and the arts were funded and directed either by the state or the nobility (See Article 1, Section 9 on the no nobility thing).

The intellectual property clause of the Constitution was an expression of both practicality and principle. Creating an incentive for the author or inventor to make his own investment in his work reflected—in my view—the best intentions of the Framers to ennoble the individual, hoping that doing so would enrich the nation overall. By the mid 20th century, the theory proved itself with the U.S. leading the world in the output of creative works. But intertwined with the commerce came the diverse range of expression that became the quintessentially American voice—and that voice was unavoidably political. A half century before women could vote, the suffragette and abolitionist Louisa May Alcott was one of the first truly American authors whose writing saved her family from economic ruin because one right she did have was the ability to register a copyright.

Fast forward to current events and the general reaction to the president-elect’s “demand” for an apology from the cast of Hamilton. Sure, that was probably a bit of tactical diversion, which spawned mostly satirical responses wanting to remind the Trump team what the First Amendment says, but the important piece of the story is Hamilton itself. Because copyright gave Lin-Manuel Miranda an incentive to invest his sweat equity in creating the show, that became the basis for the risky investments which produced the hit which provided a platform for a company of artists to speak to an elected official about matter of concern.

In part, what’s being communicated is that the financial success of the artists reflects political power (i.e. that there is a large population which supports both message and messenger). And artists should not lose sight of the underlying rights that give them that economic, and therefore political, voice. Or to take a different macro view, the platform Twitter, which enabled Trump’s provocation and much of the response, could still fail as a business, while theater has a pretty good track record.

Regardless of one’s policy views or party affiliations, it seems clear that the magnetic poles are shifting with regard to both tone and agenda in American politics. And because many artists are moved to respond to social conditions, we are likely to see quite a few speak out in defense of civil liberties they fear may be threatened in the current environment. This will surely include threats—perceived or real—to the sanctity of the internet as the bulwark against encroachments on the First Amendment. This is not a new theme, and it is one that has been exploited to great effect by the internet industry as an excuse to attack legislative measures to enforce copyrights online and/or voluntary measures to achieve that goal.

The sound of the rhetoric may change somewhat in the coming months. If one was inclined to believe that copyright enforcement would harm free speech before, one may be twice as likely to believe that message in an increasingly anxious climate. But it still won’t be true. If there are indeed new First Amendment infringements to come, they won’t be grounded in copyright policy. To the contrary, no matter who occupies the Oval Office, or how cybersecurity practices evolve, the fact remains that a failure to effectively protect and respect creators’ rights online only disenfranchises the professionals whose voices have always been essential to democratic principles.

In his Friday’s Endnotes for his blog Copyhype, Terry Hart cites an appropriate quote by Lyndon Johnson from the dedication of the John F. Kennedy Center for the Performing Arts on December 2, 1964:

Our civilization, too, will largely survive in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man and nation from nation, and century from century. That quality confirms the faith that our common hopes may be more enduring than our conflicting hostilities.

It’s kinda like on November 9th, everyone suddenly discovered that social media fosters a fake news problem. Well, better late than never I suppose, but just because the topic of fake news is trending now, that doesn’t make it news. It’s been a problem for a long time, and if there’s a solution to be found, it probably does not begin by asking what Facebook, Twitter, or Google can do about it so much as what we can do about it.

Information, meaning facts, should not be political, or at least not partisan. But that ship has not only sailed, it’s gone straight over the edge of the flat Earth. And while there’s no question that I’ve seen both liberals and conservatives (for want of better terms) share unsubstantiated garbage posing as news, it’s hard to get past the fact that finding a reference point for truth in the digital age takes a lot more work than it did in the analog world of “scarcity.”

But who ceded so much power to these platforms? We did. Conservatives and liberals did. Republicans and Democrats did. Everyone who defines all professional journalism by the pejorative “mainstream media” has given power to social media as the new temples of truth. So, now, various factions are jumping on Zuckerberg, blaming fake news for the outcome of the election and insisting the company must do a better job of weeding out bogus news sites and hoaxes.

As an aside, I see no problem if AdSense or Facebook want to cut off the revenue spigots for fake news creators. Caitlin Dewey, writing for the Washington Post, profiled a fake news maker who earns about $10,000/month in ad revenue from spinning catchy dreck that your friends and mine share on social sites. But while the OSPs are reacting to the election and the backlash against fake news, they and their cadre of pundits and advocates ought to be a little chastened about their chronic abuse of the word innovation as a catch-all to describe what an unbounded internet actually produces. Just like pirate sites have managed to innovate revenue from creators’ pockets into their own pockets, these fake news creators innovate attention away from legitimate journalism toward utter gibberish simply because there’s money in it. But that doesn’t make it the OSP’s fault that so many users believe and spread all that fake news?

So, here’s a thought: Facebook is not, and never has been, a news source. At best, it’s a high-speed synthesis of the community bulletin board with the bathroom wall. And it’s one that is manipulated, adjusted, and monitored in order to maximize data harvesting and advertising value. I say this as someone who enjoys sharing a zinger, a comment, or a conversation on the platform. But news? It really depends.

Sadly, even paying attention to the publishing source is not always helpful. The tragedy of expanding, democratizing, and glitzing up news is that even the brand-name sources compete with the lowest common denominator. Many professional news organizations are apt to publish a story with thin research and a grabby headline just to remain visible in the multi-species stampede of stories careening through social media, kicking up huge clouds of dust.

Fake news is not nearly as big a problem as the real news that’s being filtered through marketing templates that drive reasonable and decent people apart, creating a vacuum in the middle. Not only are we destroying the middle-class economically, but we seem to be doing an excellent job of ruining the center politically.

I have long believed that one of the reasons the United States is so fragile—but also the reason it can be great—is that we really don’t have a common culture. We have a million competitive or compatible narratives happening at any given moment. Then, the customization of social media seems to have exacerbated the lesser angels of diversity, fostering new forms of segregation, obliterating common ground for the sake of a complex and phantasmagoric venn diagram of American society. I suspect it’s how we look to a computer–especially one that wants to market to us individually–but not quite a fair representation of how we might wish to look to ourselves.

On Monday, the Internet Association, which represents most of the major online platforms, sent a letter to the president-elect asking that his administration show support for the the status quo of the CDA and the DMCA in order to sustain “innovation and free expression” online. But for the date and the name Trump, the letter is a boilerplate industry position arguing that the OSPs’ limited-liability for actions like copyright infringement is the reason we consumers enjoy all the prosperity being fostered by the internet. Of course, I am moved to ask, even in a reluctant spirit of bipartisanship, what prosperity?

Setting aside all the vitriol and hate-speak for a moment (and it is very hard to set aside), the primary rationale voters cited in the exit polls for their votes was a “Desire for change.” So many Americans are apparently feeling anxious about their economic prospects that they are literally grasping at straws at this point. In this regard, both parties are guilty of dissembling on the promise to “bring jobs back” when speaking to working-class voters—projecting a false image of middle-class, manufacturing jobs returning while simply ignoring the reality of automation. Even if a new factory is built in Pennsylvania, it’s mostly going to be run by robots.

Meanwhile, the internet industry is asking the presumptive change agent that is the president-elect to support the entrenchment of 20-year-old statutes that have failed to produce anything like middle-class, economic prosperity to replace what those statutes have actually cost us. As the letter to Trump states …

“Intermediary liability laws and policies protect free speech and creativity on the internet. This, in turn, generates substantial value for our economy and society through increased scale, greater diversity, and lowered barriers to entry for creators and entrepreneurs.”

That sounds very pretty, but where’s the beef? We can count the money that no longer goes into the pockets of authors, music makers, filmmakers, photographers, journalists, etc. And we can count the supporting jobs and businesses those industries no longer sustain; but where is the middle-class prosperity that’s replacing those losses—all that “substantial value for our economy” the internet industry keeps talking about? Because if people have been enjoying that prosperity, then why all the economic anxiety? What about the millions of voters who were on the fence about Trump but are simply so worried about dwindling economic opportunity that they figured some change—any change—was worth a shot?

The internet industry is still selling roulette economics dressed up as entrepreneurism and using that pitch to justify stealing economic value from hard-working creators. I know the internet industry largely campaigned against Trump because they personally view themselves as progressives, but from a policy perspective with regard to issues like DMCA safe harbors, I’m surprised the Internet Association wouldn’t have expected a casino owner to be an ideal ally to their way of viewing the economy. After all, the YouTube version of “prosperity” is exactly the same as a casino. A handful of big winners makes new creators forget that most who try will lose while the house always wins. They dangle stories like PewDiePie just like golden dollar signs in a casino to convince creators there is a new way to “make it” in a market where they no longer need to care about owning the rights to their work.

Maybe it’s time for the leaders in Silicon Valley to do some soul-searching and decide whether they truly care to benefit people the way they keep claiming they do; or if they just want to protect their bottom line. There are members of the Internet Association who are more pragmatic about finding common ground with authors and creators, some who are more willing to sit down and discuss practical and voluntary solutions to solve challenges like mass infringement and other exploitations of creative work.

Other members are less inclined to this approach, given to protectionist responses and divisive PR aimed at creators seeking voluntary and legislative measures to mitigate mass infringement. But these folks should make up their minds. You can’t be for the people and be anti-individual rights at the same time; and the right to protect one’s ownership in expressive works is an individual right. In fact, it happens to be the first individual right mentioned in the Constitution. Time for Silicon Valley to put down its playbook and think more humanely about the future.